Surely defamation is the real threat to free speech

The Racial Discrimination Act seeks to curb a very narrow range of behaviours.

Julian Smith: AAP

Even the most vigorous champions of free speech have at times been tempted to defend their reputations by using Australia's powerful defamation laws, writes Jonathan Green.

One test of honest conviction is consistency. If you are a doughty defender of free speech, then you should reasonably be expected to apply that principle universally, in all circumstances, without fear or favour.

Which makes you wonder why the folk who have railed of late against the provisions of the Racial Discrimination Act's section 18C don't also have a problem with defamation.

The pre-conditions for vocal political concern exist. Just as he has been on the wrong end of legal action for racial vilification, Andrew Bolt has also been sued, with success, for defamation. Victorian magistrate Jelena Popovic was awarded $246,000 in 2002 after Bolt claimed she had "hugged two drug traffickers she let walk free".

This is worthy of mention, because it seems Bolt is our yardstick in these things. Section 18C was a sleeping dog let lie until the Federal Court found against him in 2011 ... at that point it became the Frigidaire of free speech.

Which is mysterious given that the Racial Discrimination Act seeks to curb a very narrow range of behaviours; which is to say, it aims to prevent nothing more than slurs based on race, and it does so without criminal penalty and in only the most egregious cases of offence.

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

It sounds like nothing more or less than a call for a very fundamental politeness, but as we have learned in recent weeks, the right to rudeness is apparently a precious, fundamental ingredient in our freedom of speech.

Compare the narrow scope of 18C with the almost encyclopaedic possibilities of defamation. Here's a handy definition of what might be considered defamatory under the Australian law that has applied universally to all states and territories since 2006. Defamation is:

The publication of any false imputation concerning a person, or a member of his family, whether living or dead, by which (a) the reputation of that person is likely to be injured or (b) he is likely to be injured in his profession or trade or (c) other persons are likely to be induced to shun, avoid, ridicule or despise him.

Publication of defamatory matter can be by (a) spoken words or audible sound or (b) words intended to be read by sight or touch or (c) signs, signals, gestures or visible representations, and must be done to a person other than the person defamed.

Both the Racial Discrimination Act and the Defamation Act grapple with the tricky intersection of personal and reputational protection and free speech. It's admittedly awkward territory, which is why this argument has run with some intensity since the Bolt decision of September 2011, a decision that was never appealed by Bolt or the Herald and Weekly Times ... perhaps because leaving the wound raw offered more enduring political advantage? Who knows. Or perhaps because they didn't have much of a leg to stand on. As Justice Bromberg found in that case:

... the articles were not written ‘reasonably and in good faith', as required by s 18D of the RDA. The inclusion of untruthful facts, the use of inflammatory and provocative language and the failure to minimise the potential harm to those likely to be offended denied to Bolt and the HWT, both the ‘fair comment' exemption provided by s 18D(c)(ii) and the genuine purpose exemption provided by s 18D(b) of the RDA.

This is significant because it is the exemptions offered in Section 18D of the Act that have been most altered in the exposure draft offered for our consideration last week by the Attorney-General. In that draft, anything said "in public discussion of any political, social, cultural, religious, artistic, academic or scientific matter" will be protected from action under the new section 18C of the Act, a section in the draft that removes the words "offend, insult and humiliate", leaving "intimidate" and adding the word "vilify".

All the complainants in the Bolt v Eatock case (brought under the existing Racial Discrimination Act) could probably have sued the columnist for defamation instead with a better than sporting chance of success. Change the Racial Discrimination Act till it becomes a pale shadow of its former self and that possibility still exists, presumably at even greater cost to the columnist's rights to freedom of expression.

And defamation, make no mistake, can have far sterner - and costlier - consequences than a finding under the RDA.

Which leads us back to that earlier point: why is defamation law not the target of libertarian argument based on the right to freedom of speech?

Is it because defamation instinctively protects the powerful ... unlike the RDA which champions people who, based on their treatment, are, by definition, at a social disadvantage?

Is it because defamation upholds the rights of the individual not to be the victim of calumny, the notion of individual rights being a concept dear to the liberal political consciousness, and one in that respect quite unlike racial vilification, which introduces the awkward collective notion of ethnic identification?

All of that may be parts of an explanation, but while racial vilification recedes and defamation stays, it's not unreasonable to question the consistency of any argument based on fundamental freedom, a freedom routinely curtailed by the very common, and often expensive, mere threat of defamation litigation.

Even the most vigorous champions of free speech have at times been tempted to defend their reputations through litigation.

Two weeks ago, the ABC TV program Q&A apologised to Andrew Bolt. A week earlier panellist the Aboriginal academic Marcia Langton had claimed Bolt had racially abused a fair-skinned indigenous woman and said he was a "fool" who believed in "race theories".

She and Q&A subsequently apologised to Bolt, who had claimed publically that Langton's claims were "false and defamatory". As he wrote on the Tuesday after Langton's appearance:

Will the ABC's Q&A next Monday now correct the record and apologise for airing what host Tony Jones called "those sort of facts"? Langton's slurs devastated me and were false and defamatory. The damage should be repaired as best the ABC can.

It doesn't matter if Bolt was intentionally invoking defamation law (he claims he wants to "set an example" by not suing for defamation though that didn't stop him from threatening to do just that earlier this year). The mere use of the word "defamation" did the job.

And there we stand, with apologies all round, 18C on the chopping block and defamation still proudly ascendant.

In the brave new sunlit uplands of the proposed post-18C world, I will be able to call you a nigger. But I still won't be able to call you a thief. Spot the consistency in that.

Jonathan Green hosts Sunday Extra on Radio National and is the former editor of The Drum. View his full profile here.